Seocho 2013 Schedules242 ( June 26, 2013)

Since it is sufficient to recognize that there is a tax unpaid in installments over several occasions, the imposition of an additional tax for unfaithful payment is legitimate.

It is sufficient to recognize that the amount of tax to be paid after preliminary return of capital gains tax has been made in several installments, and it is difficult to deem that there is a justifiable reason for the taxpayer to have failed to perform his/her obligations, considering the fact that the amount of tax unpaid can be paid by the claimant before the tax payment notice is issued.

2013Gudan19786 revocation of disposition of imposing capital gains tax

CHAPTER A

Head of Seocho Tax Office

July 24, 2014

September 25, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant imposed capital gains tax for the year 2007 on the Plaintiff on November 12, 2012

The part of the OOO shall be revoked.

1. Details of the disposition;

A. The Plaintiff owned the OOO-dong O-O land and its ground (hereinafter “instant real estate”) on September 28, 2007, and transferred it to this B on September 28, 2007.

B. On November 28, 2007, the Plaintiff filed a preliminary return on the tax base of capital gains with the OOO as the tax amount to be voluntarily paid for the transfer of the instant real estate as of November 28, 2007, and paid OO won among them.

C. On May 14, 2008, the Defendant reported the acquisition value and necessary expenses of the instant real estate to the Plaintiff, unlike the preliminary return, and calculated the transfer income tax as the OOO won, the Defendant deemed the already paid tax amount as the amount for which the Plaintiff made the preliminary return and notified the correction and notification of the OO won deducted therefrom. The Plaintiff paid the OO won on May 30, 2008.

D. After that, on November 12, 2012, the Defendant confirmed that the amount of tax paid by the Plaintiff at the time of preliminary return according to the audit and cadastral register of the Seoul Regional Tax Office was an OOO won, and on the basis of this, notified the Plaintiff of the correction and notification of the capital gains tax amount reverted to the year 2007, including the OOwon (hereinafter “instant additional tax”).

E. The Plaintiff appealed to the instant disposition of imposing additional tax (hereinafter “instant disposition”) and filed an appeal with the Tax Tribunal, but was dismissed on June 26, 2013.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 3 evidence, Eul 1 to 4 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was appointed as a tax agent and processed capital gains tax on the instant real estate, and did not know the fact that part of the amount of tax to be voluntarily paid at the time of the preliminary return of capital gains tax base was unpaid. The Plaintiff recognized that the Defendant prepared and submitted an application for early decision, which was prepared on May 14, 2008 on the premise that the amount of tax to be paid was an OO won, but the Defendant did not confirm it and did not notify the Defendant of the correction and notification of capital gains tax as of May 14, 2008. The Plaintiff, who was not well aware of the tax law, did not have any other reason to believe the content of the above disposition. Therefore, the Plaintiff’s trust should be protected, which constitutes justifiable grounds for not being attributable to the Plaintiff’s neglect of duty.

B. Determination

1) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under the tax law is an administrative sanction imposed as prescribed by the individual tax law in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, and it is unreasonable for the taxpayer to be aware of such obligations, and thus, if there are circumstances that make it difficult for him/her to properly present his/her obligations or there are circumstances that it is unreasonable for him/her to expect a party to fulfill his/her obligations, the imposition may be exempted (see, e.g., Supreme Court Decision 2003Du4089, Apr. 15, 2005). However, a taxpayer’s intentional or negligent act does not constitute justifiable grounds that do not constitute a breach of duty (see, e.g., Supreme Court Decision 2005Du10545, Apr. 26, 2007).

In addition, tax authorities may decide to impose capital gains tax or to correct the decision at any time, unless the period for reporting capital gains tax confirmation or the period for exclusion does not coincide (see, e.g., Supreme Court Decision 2000Du5944, Apr. 12, 2002).

2) According to the Defendant’s statement on May 14, 2008, prior to the Defendant’s notice of correction and correction of the transfer income tax as of May 14, 2008, the Plaintiff prepared and submitted to the Defendant an application for early decision, which was based on the premise that the already paid tax amount is an OO won, and OO, etc. In full view of these recognized facts, the Plaintiff stated the fact that the notice of correction and notification of the transfer income tax as of May 14, 2008 was mistakenly calculated, and the Defendant did not have any justifiable reason that the Plaintiff could not be deemed to have caused the Plaintiff’s failure to perform its duty, and there is no reason to deem otherwise to apply the principle of trust protection to the Plaintiff.

3) Therefore, the Defendant’s instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.